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Sunday, June 29, 2014

About 89,000 foreigners or organizations were targeted for spying under a U.S. surveillance order last year, according to a new transparency report. The report was released for the first time Friday by the Office of the Director of Intelligence, upon order of the president, in the wake of surveillance leaks by NSA whistleblower Edward Snowden.

But the report, which covers only surveillance orders issued in 2013, doesn’t tell the whole story about how many individuals the spying targeted or how many Americans were caught in the surveillance that targeted foreigners. Civil liberties groups say the real number is likely “orders of magnitude” larger than this.

“Even if it was an honest definition of ‘target’—that is, an individual instead of a group—that also is not encompassing those who are ancillary to a target and are caught up in the dragnet,” says Kurt Opsahl, deputy general counsel of the Electronic Frontier Foundation.

The report, remarkably, shows that the government obtained just one order last year under Section 702 of FISA—which allows for bulk collection of data on foreigners—and that this one order covered 89,138 targets. But, as the report notes, “target” can refer to “an individual person, a group, an organization composed of multiple individuals or a foreign power that possesses or is likely to communicate foreign intelligence information.”

Furthermore, Section 702 orders are actually certificates issued by the FISA Court that can cover surveillance of an entire facility. And since, as the government points out in its report, the government cannot know how many people use a facility, the figure only “reflects an estimate of the number of known users of particular facilities (sometimes referred to as selectors) subject to intelligence collection under those Certifications,” the report notes.

“If you’re actually trying to get a sense of the number of human beings affected or the number of Americans affected, the number of people affected is vastly, vastly larger,” says Julian Sanchez, senior fellow at the Cato Institute. “And how many of those are Americans is impossible to say. But [although] you may not think you are routinely communicating with foreign persons, [this] is not any kind of assurance that your communications are not part of the traffic subject to interception.”

Sanchez points out that each individual targeted is likely communicating with dozens or hundred of others, whose communications will be picked up in the surveillance.

“And probably a lot of these targets are not individuals but entire web sites or companies. While [a company like the Chinese firm] Huawei might be a target, thousands of emails used by thousands of employees will be swept up.”

How many of those employees might be American or communicating with Americans is unknown.

Also revealed in today’s report is the number of times the government has queried the controversial phone records database it created by collecting the phone records of every subscriber from U.S. providers.

According to the report, the government used 423 “selectors” to search its massive phone records database, which includes records going back to at least 2006 when the program began.

A search involves querying a specific phone number or device ID that appears in the database. The government has long maintained that its collection of phone records isn’t a violation of its authority, since it only views the records of specific individuals targeted in an investigation. But such searches, even if targeted at phone numbers used by foreigners, would include calls made to and from Americans as well as calls exchanged with people two or three hops out from the targeted number.

In its report, the government indicated that the 423 selectors involved just 248 “known or presumed” Americans whose information was collected by the agency in the database. But Opsahl says that both of these numbers are deceptive given what we know about the database and how it’s been used.

“We know it’s affecting millions of people,” he points out. But “then we have estimated numbers of affected people [that are just] in the three digits. That requires some effort [on the government's part] to find a way to do the definition of the number [in such a way] to make it as small as possible.”

One additional figure today’s report covers is the number of National Security Letters the government issued last year to businesses to obtain data on accountholders and users—19,212.

NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited, and more.

These letters are a powerful tool because they do not require court approval, and they come with a built-in gag order, preventing recipients from disclosing to anyone that they have received an NSL. An FBI agent looking into a possible anti-terrorism case can self-issue an NSL to a credit bureau, ISP, or phone company with only the sign-off of the Special Agent in Charge of their office. The FBI has merely to assert that the information is “relevant” to an investigation into international terrorism or clandestine intelligence activities.

The FBI has issued hundreds of thousands of NSLs over the years and has been reprimanded for abusing them. Last year a federal judge ruled that the use of NSLs is unconstitutional, due to the gag order that accompanies them, and ordered the government to stop using them. Her ruling, however, was stayed pending the government’s appeal.

According to the government’s report today, the 19,000 NSLs issued last year involved more than 38,000 requests for information.

Germany announced Thursday it is canceling its contract with Verizon Communications over concerns about the role of U.S. telecom corporations in National Security Agency spying.

“The links revealed between foreign intelligence agencies and firms after the N.S.A. affair show that the German government needs a high level of security for its essential networks,” declared Germany’s Interior Ministry in a statement released Thursday.

The Ministry said it is engaging in a communications overhaul to strengthen privacy protections as part of the process of severing ties with Verizon.

The announcement follows revelations, made possible by NSA whistleblower Edward Snowden, that Germany is a prime target of NSA spying. This includes surveillance of German Chancellor Angela Merkel’s mobile phone communications, as well as a vast network of centers that secretly collect information across the country.

Yet, many have accused Germany of being complicit in NSA spying, in addition to being targeted by it.

The German government has refused to grant Snowden political asylum, despite his contribution to the public record about U.S. spying on Germany.